Bombay High Court
Dattatraya Shriram Ingle vs The Committee For Scru. & Veri. & ... on 7 June, 2016
Bench: B.P. Dharmadhikari
wp1614.03 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 1614 OF 2003
Dattatraya s/o Shriram Ingle,
aged about 43 years, occupation
Service, resident of Daryapur,
Tahsil - Daryapur, Dist. Amravati. ... PETITIONER
Versus
1. The Committee for Scrutiny &
Verification of Tribal Claims,
Amravati thr. its Chairman.
2. The Deputy Director,
Vocational Education & Training,
Regional Office, Amravati. ... RESPONDENTS
Shri R.M. Ahirrao, Advocate for the petitioner.
Shri N.H. Joshi, AGP for the respondents.
.....
CORAM : B.P. DHARMADHIKARI &
KUM. INDIRA JAIN, JJ.
JUNE 07, 2016.
ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)
Heard Shri Ahirrao, learned counsel for the
petitioner and Shri Joshi, learned AGP for the respondents.
2. The petitioner has questioned the order dated
10.02.2003 passed by Respondent No. 1 - Scrutiny Committee,
invalidating his caste claim as belonging to Thakur, Scheduled
Tribe. This Court has issued notice in the matter on
02.05.2003 and protected his employment. It is not in dispute
that the petitioner is born on 14.12.1959 and reaches the age of
superannuation in the next year.
3. Shri Ahirrao, learned counsel, submits that entry 44
in the Presidential Scheduled Tribe Order envisages Thakur,
Scheduled Tribe and hence distinction as higher caste Thakur
and Thakur, Scheduled Tribe as used by Respondent No. 1 -
Scrutiny Committee in the impugned order is unsustainable. He
further contends that all documents produced by the petitioner
to substantiate his caste claim are found genuine and have
mentioned caste as Thakur. In view of these old documents
which are of pre-independence period, use of affinity test to
discard those documents is not warranted. He draws support
from the judgment of the Hon'ble Apex Court in the case of
Anand vs. Committee for Scrutiny and Verification of Tribe
Claims & Ors., reported at 2011 (6) Mh. L.J. 919 and the
Division Bench judgment of this Court dated 15.01.2016 in
Writ Petition No.4210 of 2000 (Sudhirkumar Bhaurao More vs.
State of Maharashtra thr. its Secretary, Department of Social
Welfare & Ors.).
4. Shri Joshi, learned AGP is relying upon the reply
affidavit. He states that the Scrutiny Committee has specifically
found that caste with same nomenclature appears in Scheduled
Tribe as also in upper caste. This fact is not in dispute. Hence,
the Scrutiny Committee cannot go only by the documents and,
therefore, has relied upon affinity test. He states that the
judgment of the Hon'ble Apex Court in the case of Anand vs.
Committee for Scrutiny and Verification of Tribe Claims & Ors.,
(supra) does not overrule relevance of affinity test in such
circumstances. He, therefore, prays for dismissal of writ
petition.
5. In reply, Shri Ahirrao, learned counsel reiterates his
contentions. Without prejudice and by way of abundant
precautions or in the alternative he submits that as the
petitioner has joined employment way back in the year 1983,
he is entitled to protection of his employment in view of Full
Bench judgment of this Court in the case of Arun Vishwanath
Sonone vs. State of Maharashtra & Ors., 2015 (1) Mh.L.J. 457
(FB).
6. With the assistance of the learned counsel, we have
perused the impugned order. The impugned order no doubt
finds that there are four documents of pre-independence period
in which caste has been recorded as Thakur. Thereafter it
refers to Vigilance Cell inquiry and statement of Smt.
Shakuntalabai Shriram Pawar, who according to the petitioner,
is mother-in-law. The affinity test has been relied upon on the
basis of said statement. In para 15(B), Scrutiny Committee has
found that the test of old documentary entries cannot be
applied in the facts before it because in upper caste also, the
same caste entries are found to be recorded. Thus, similarity in
nomenclature warranted use of affinity test. The fact that the
caste with same name appears in upper caste is not in dispute.
7. The judgment of the Hon'ble Apex Court in the case
of Anand vs. Committee for Scrutiny and Verification of Tribe
Claims & Ors., (supra) in para 18 observes that genuineness of
a caste claim needs to be considered not only on a thorough
examination of documents submitted in support of the claim
but also on the affinity test which would include the
anthropological and ethnological traits etc. of the candidate.
The Hon'ble Apex Court further states that it is neither feasible
nor desirable to lay down an absolute rule, which could be
applied mechanically to examine a caste claim.
8. In facts before the Division Bench of this Court,
which deciding Writ Petition No. 4210 of 2000, the controversy
that caste with same nomenclature appears as upper caste
'Thakur' has not been argued and has not been gone into. The
said judgment does not, therefore, hold that affinity test cannot
be applied in case of 'Thakur', Scheduled Tribe candidates.
When caste with name 'Thakur' is available as Scheduled Tribe
and also as a upper caste, mere scrutiny of documents will
never be sufficient to determine the real status.
9. We, therefore, find that in the present facts, the
Scrutiny Committee has rightly applied affinity test and found
that the petitioner failed to satisfy the same. The finding that
the petitioner, therefore, does not belong to Thakur, Scheduled
Tribe is not without jurisdiction and also not perverse.
10. However, the facts show that the petitioner born on
14.12.1959, got caste certificate on 07.10.1993 and got
employment on 01.02.1983. It is apparent that at that time he
did not possess a caste certificate issued by the Executive
Magistrate. A perusal of the impugned order reveals that he
got the caste certificate 10 years thereafter i.e. on 07.10.1993.
11. The controversy about this Scheduled Tribe has
been engaging the attention of this Court and the Hon'ble Apex
Court for quite some time. In this situation, the principles laid
down by the Full Bench of this Court in the case of Arun
Vishwanath Sonone vs. State of Maharashtra & Ors., (supra), for
extending benefit of protection in employment are clearly
attracted. We, therefore, find that the petitioner is entitled to
grant of protection of his service.
12. Though, we uphold the order of Scrutiny
Committee dated 10.02.2003, we declare that the employment
of the petitioner shall not be dispensed with if he files an
undertaking with his employer, with the Registry of this Court
and with the Scrutiny Committee that neither he nor his
progeny shall claim the benefit or status as 'Thakur', Scheduled
Tribe, within a period of 12 weeks from today.
13. Thus, with this protection to the petitioner, we
dispose of the present writ petition. Rule discharged.
However, in the facts and circumstances of the case, there shall
be no order as to costs.
JUDGE JUDGE
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*GS.
